Opinion
No. COA15-586
04-19-2016
STATE OF NORTH CAROLINA v. TYREE TARAYE DOZIER
Attorney General Roy Cooper, III, by Assistant Attorney General Kenneth A. Sack, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Jillian C. Katz, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Wake County, No. 11 CRS 227765 Appeal by defendant from judgment entered 1 December 2014 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 5 November 2015. Attorney General Roy Cooper, III, by Assistant Attorney General Kenneth A. Sack, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Jillian C. Katz, for defendant-appellant. McCULLOUGH, Judge.
Tyree Taraye Dozier ("defendant") appeals from judgment entered upon his plea of guilty to charges of trafficking in marijuana by possession, trafficking in marijuana by transportation, and maintaining a vehicle used for keeping or selling controlled substances. Defendant argues that the trial court erred by denying his motion to suppress. For the following reasons, we reverse and vacate.
I. Background
On 6 February 2012, defendant was indicted on the following charges: trafficking marijuana by possession in violation of N.C. Gen. Stat. § 90-95(h); trafficking marijuana by transportation in violation of N.C. Gen. Stat. § 90-95(h); and maintaining a vehicle used for keeping or selling controlled substances in violation of N.C. Gen. Stat. § 90-108(a)(7).
On 9 November 2012, defendant filed a motion to suppress, moving to suppress the stop, search, and arrest of defendant based upon a violation of defendant's Fourth Amendment rights under the Constitution of the United States and Article 1, Section 20 of the North Carolina Constitution. This motion was not heard. On 24 October 2014, defendant filed a new motion to suppress, moving to suppress the stop, search, and arrest of defendant on the same grounds. A hearing on defendant's motion to suppress was held on 3 November 2014.
At the hearing on defendant's motion to suppress, Detective Ben Huger, an investigator with the Raleigh Police Department, testified that he was on duty on 1 December 2011. At 5:00 p.m. he received a phone call from Detective Stewart Rhodes, informing him that a citizen had called and informed the police that "a substantial amount of drugs were going to be delivered that evening on December 1 of 2011 to 409, Apartment A, Jones Franklin Road[.]" The caller stated that the delivery would be made by a person operating a Chrysler Sebring and that the drugs would be "immediately distributed." The caller did not give any specifics about the color, tag number, or any other detail in relation to the Chrysler Sebring. Detective Rhodes gave Detective Huger the citizen's phone number and Detective Huger was able to speak with the citizen. The citizen relayed the same information to Detective Huger.
Detective Huger drove to 409 Jones Franklin Road, apartment A, and set up surveillance about fifty to sixty feet away from the apartment. 409 Jones Franklin Road was a triplex, containing apartments A, B, and C, and the three apartments shared a U-shaped driveway. Detective Huger saw several vehicles pull up to the building, in front of apartment A, and "[t]hey remained for a brief period of time and then they left the area." The vehicles would only stay a "minute or two." Detective Huger saw a sports utility vehicle ("SUV") and a full-sized pickup truck. He testified that vehicles "pulling up to a particular place only staying for a few minutes and then leaving" was the "type of behavior" that he had observed from prior surveillances of businesses and residences of "people purchasing controlled substances."
Detective Huger observed a Chrysler Sebring pull out from 409 Jones Franklin Road and head south. A "dark-in-color" Chrysler 300 arrived at 409 Jones Franklin Road, stayed for a brief period, and then left, going south on Jones Franklin Road. The Chrysler Sebring Detective Huger had previously observed returned to 409 Jones Franklin Road for a brief period of time after being gone for forty-five minutes. Detective Huger did not see anybody delivering drugs from the Chrysler Sebring to the residence. A Taurus also arrived at the residence. Thereafter, the Chrysler Sebring and Taurus left the residence with the Taurus traveling first, followed by the Chrysler Sebring. Detective Huger asked officers that an investigative stop be conducted on those two vehicles as they traveled south on Jones Franklin Road. Detective Huger admitted that just because the Taurus left, followed by the Sebring, it "[didn't] necessarily mean that they were traveling in tandem[.]"
Sergeant Charles Lynch, a sergeant with the Raleigh Police Department, testified that he was supervising Detective Huger on 1 December 2011. Sergeant Lynch testified that he received information from Detective Huger via the radio "that a [light-colored] vehicle would be leaving the area with a quantity of drugs in the trunk." As soon as he received that information, Sergeant Lynch observed a light-colored Taurus exit the parking lot of 409 Jones Franklin Road and drive southbound. Sergeant Lynch followed the Taurus and executed a traffic stop of that vehicle. The driver of the Ford Taurus was defendant.
Defendant did not present any evidence.
The trial court orally recited the following findings of fact, in pertinent part:
[2.] [O]n December 1, 2011 Detective Ben Huger was on duty as a member of the drug and vice unit trained in the law of search and arrest of street-level drug dealers and worked with the investigative squad from citizens' complaints and informants.
[3.] [O]n the night shift of December 1, 2011 the Raleigh Police Department received a drug-related telephone call. A citizen reported that a substantial amount of drugs would arrive at 409, apartment A, Jones Franklin Road in the city of Raleigh being delivered by a person operating a Chrysler Sebring. Detective Huger was given the telephone number of that citizen and Officer Huger called that citizen and discussed the matter with him.
[4.] Officer Huger went to the 400 block of Jones Franklin Road, a very busy road, and established surveillance on foot in the woods across the street and just south from the triplex at 409 Jones Franklin Road. Officer Huger was sixty feet from the location of 409 Jones Franklin Road. He remained at surveillance at that location for two hours from 5:30 p.m. on December 1, 2011.
[5.] Officer Huger observed several vehicles, an SUV, and a full-size pickup truck making brief stops at apartment A, 409 Jones Franklin Road. Each visit was a minute or two. . . . A perimeter was set up around the scene at the direction of Sergeant Lynch.
[6.] Officer Huger saw a Chrysler Sebring leave 409 A Jones Franklin Road and head south on Jones Franklin Road. Sergeant Lynch saw a light-colored Taurus leave that residence. The defendant was the driver of the light-colored Taurus, which was stopped by Sergeant Lynch.
[7.] [P]rior to that occasion the Sebring had left and returned to apartment A, 409 Jones Franklin Road.
[8.] [S]ubsequent to that the Taurus and Sebring left the residence. The Taurus left first followed by the Sebring.
[9.] [B]oth the Sebring and the Taurus were stopped by law enforcement officers.
[10.] [T]he defendant was driving the Taurus. He was stopped by Officer[s] Albert and . . . Lynch.
[11.] Officer Huger never saw the defendant go to the Sebring vehicle.The trial court then concluded as follows:
[12.] [T]he Chrysler Sebring was stopped going south on Jones Franklin Road after it had left the residence at 409 A Jones Franklin Road.
[T]he information received from the anonymous tipster was corroborated in the following specific detail: There was a Chrysler Sebring at apartment A, 409 Jones Franklin Road; there were at least two vehicles, an SUV and a full-size pickup, that made brief stops at apartment A, 409 Jones Franklin Road limited to a minute or two, which is indicative of drug trade. . . . [C]onsidering the totality of the circumstances the law enforcement officers had reasonable suspicion to conduct an investigatory stop of the defendant, Tyree Dozier's, vehicle.Defendant's motion to suppress was denied.
On 3 November 2014, defendant pled guilty to all three charges while reserving his right to appeal the denial of his motion to suppress. On 1 December 2014, defendant was sentenced to twenty-five to thirty months imprisonment, suspended for twenty-four months of supervised probation.
Defendant appeals.
II. Standard of Review
"An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." N.C. Gen. Stat. § 15A-979(b) (2015).
Our review of a trial court's denial of a motion to suppress is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law. The trial court's conclusions of law . . . are fully reviewable on appeal.State v. Malunda, 230 N.C. App. 355, 358, 749 S.E.2d 280, 282 (2013) (citations and quotation marks omitted).
III. Discussion
Defendant's sole issue on appeal is whether the trial court erred by denying his motion to suppress. Defendant argues that "law enforcement had no reasonable suspicion to stop his car based on an anonymous tip, which described a completely different car, and therefore was not corroborated." We agree.
"The Fourth Amendment of the Unites States Constitution prohibits unreasonable searches and seizures." U.S. Const. amend. IV. "Article I, Section 20 of the North Carolina Constitution similarly prohibits unreasonable searches and seizures. There are generally two types of 'seizures' under the Fourth Amendment: (1) arrests and (2) investigatory stops." State v. Thorpe, 232 N.C. App. 468, 477, 754 S.E.2d 213, 220-21 (2014) (citations and quotation marks omitted).
An investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of
a reasonable, cautious officer, guided by his experience and training. The only requirement is a minimal level of objective justification, something more than an unparticularized suspicion or hunch.State v. Washington, 193 N.C. App. 670, 676, 668 S.E.2d 622, 626 (2008) (citations and quotation marks omitted).
We must first assess whether the tip from the citizen "came from an informant who was merely anonymous or one who could be classified as confidential and reliable." State v. Benters, 367 N.C. 660, 665, 766 S.E.2d 593, 598 (2014). In the present case, the evidence demonstrates that Detective Huger knew nothing about the informant other than the fact that Detective Rhodes had spoken with a citizen who informed him that "a substantial amount of drugs were going to be delivered that evening on December 1 of 2011 to 409, Apartment A, Jones Franklin Road[.]" Detective Huger testified that he had not worked with the citizen before. There was no evidence presented suggesting that the information obtained from the citizen was against his or her penal interests or that the citizen had a history of providing reliable information to law enforcement. Therefore, in evaluating this case, we will apply the anonymous tip standard. The State does not contest this characterization.
"An anonymous tip can provide reasonable suspicion to justify a warrantless stop as long as it exhibits sufficient indicia of reliability . . . and if it does not, then there must be sufficient police corroboration of the tip before the stop may be made." State v. Blankenship, 230 N.C. App. 113, 116, 748 S.E.2d 616, 618 (2013) (citation and quotation marks omitted).
Here, the trial court did not address whether the anonymous tip exhibited sufficient indicia of reliability on its own. Instead, the trial court concluded that:
the information received from the anonymous tipster was corroborated in the following specific detail: There was a Chrysler Sebring at apartment A, 409 Jones Franklin Road; there were at least two vehicles, an SUV and a full-size pickup, that made brief stops at apartment A, 409 Jones Franklin Road limited to a minute or two, which is indicative of drug trade. . . . [C]onsidering the totality of the circumstances the law enforcement officers had reasonable suspicion to conduct an investigatory stop of the defendant, Tyree Dozier's, vehicle.
"Although determining whether an anonymous tip is sufficiently reliable to justify an investigative detention clearly hinges upon the totality of the circumstances, the informant's veracity, reliability and basis of knowledge are important factors to consider." State v. Harwood, 221 N.C. App. 451, 459, 727 S.E.2d 891, 898 (2012) (citation and quotation marks omitted). Our Court has emphasized the importance that "the anonymous [tip] contain[] a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." State v. Hughes, 353 N.C. 200, 206, 539 S.E.2d 625, 629 (2000) (citation omitted).
After analyzing the totality of the circumstances in the present case, we conclude that the anonymous tip did not exhibit sufficient indicia of reliability. The tip provided that a substantial amount of drugs would arrive at 409 Jones Franklin Road, Apartment A, on the evening of 1 December 2011. The anonymous tip also stated that the delivery of drugs would be made by a person driving a Chrysler Sebring. This tip did not contain any identifying characteristics of defendant or defendant's vehicle, a Ford Taurus. This anonymous tipster did not provide their basis of knowledge and scant information to predict the present or future illegal activity of defendant. Rather, the tip described a Chrysler Sebring.
Next, we must examine whether the information obtained by Detective Huger prior to the investigatory stop of defendant was "buttressed by sufficient police corroboration." State v. Johnson, 204 N.C. App. 259, 264, 693 S.E.2d 711, 715 (2010) (citation omitted). We find our holding in State v. Harwood, 221 N.C. App. 451, 727 S.E.2d 891 (2012) to be instructive.
in Harwood, officers received an anonymous tip that later that day, the defendant would be selling marijuana to an unidentified individual at a certain convenience store and that the defendant would be driving a "white vehicle." Id. at 452, 727 S.E.2d 894. Officers learned the defendant had a criminal history of selling illegal drugs and set up surveillance of the convenience store. Id. Officers observed a white vehicle, beside which an individual was standing, backing out of a parking space. Officers recognized the driver of the white vehicle to be the defendant and followed the defendant's vehicle onto the highway. Id. at 453, 727 S.E.2d at 894. The defendant drove to a residence which had an address different than that of the defendant and opened the front doors of his vehicle. Then, officers approached the defendant's vehicle with their weapons drawn, identified themselves, and ordered the defendant and his passenger to exit the vehicle. Id. at 453, 727 S.E.2d at 895. The defendant was handcuffed. At some point, the officers learned that there was an outstanding warrant for the defendant's arrest. Id.
The officers informed the defendant of the anonymous tip and the defendant admitted that he had traveled to the convenience store for the purpose of selling marijuana. Id. A small amount of marijuana was found on the defendant and the defendant agreed to allow the officers to search his residence. Officers found a rifle, ammunition, marijuana, cocaine, and pills at the defendant's residence. Id. The defendant filed a motion to suppress, seeking to suppress any evidence, including statements, obtained as a result of his encounter with the officers and the subsequent search of his residence on the grounds that his constitutional right to be free from unreasonable searches and seizures was violated. Id. at 454, 727 S.E.2d at 895. The trial court denied the defendant's motion to suppress, finding that a traffic stop did not take place and that the officers had possessed sufficient articulable suspicion that the defendant was involved in the sale, possession, and distribution of illegal substances. Id.
On appeal, our Court held that although a traffic stop did not appear to have taken place, the defendant was subjected to a "seizure" under the Fourth Amendment of the United States Constitution. Our Court held that after analyzing the totality of the circumstances, the anonymous tip did not exhibit sufficient indices of reliability on its own.
The tip in question simply provided that [the d]efendant would be selling marijuana at a certain location on a certain day and would be driving a white vehicle. . . . [T]he tip in this case lacked any detail concerning the nature of [the d]efendant's present and planned activities, such as the time at which [the d]efendant would be at the gas station, the type of vehicle that [the d]efendant would be driving, the identity of the person to whom the sale would be made, or the manner in which the sale would be conducted.Id. at 460-61, 727 S.E.2d at 899. Furthermore, "[n]othing in the subsequent activities of the investigating officers 'buttressed' the tip through 'sufficient police corroboration.' " Id. at 461, 727 S.E.2d at 899. Our Court held that the information obtained or known by the officers prior to observing the defendant at the convenience store did not justify detaining him. The officers' knowledge that the defendant was involved in previous drug activity was "not specific in nature" and only generally indicated that the defendant was engaged in the business of selling controlled substances. Id. at 461, 727 S.E.2d at 900. "The observations made by the investigating officers at the convenience store consisted of nothing more than identifying a 'determinate person' at a determinate location, a degree of corroboration that does not suffice to justify an investigative detention." Id. Accordingly, our Court held that the investigating officers lacked the reasonable suspicion necessary to support their decision to detain the defendant. Id. at 462, 727 S.E.2d at 900.
We find the circumstances of the present case even more tenuous than those found in Harwood. Here, Detective Huger testified that he saw several vehicles pull up to the front of 409 Jones Franklin Road, apartment A, and "[t]hey remained for a brief period of time and then they left the area." The vehicles, an SUV and full-sized pickup truck, would only stay a "minute or two." He testified that vehicles "pulling up to a particular place only staying for a few minutes and then leaving" was the "type of behavior" that he had observed from prior surveillances of businesses and residences of "people purchasing controlled substances." Detective Huger then observed a Chrysler Sebring pull out from 409 Jones Franklin Road and head south. After forty-five minutes, the Chrysler Sebring returned. A Taurus also arrived at the residence. Subsequently, Detective Huger saw the Taurus leave the residence, followed by the Chrysler Sebring. Detective Huger testified that just because the Taurus left, followed by the Sebring, "[didn't] necessarily mean that they were traveling in tandem[.]"
After thoughtful review, we conclude nothing in the subsequent activities of Detective Huger "buttressed" the tip through sufficient police corroboration. The information obtained by or known to the officers involved prior to conducting an investigatory stop of defendant did not provide any particularized justification for the stop of defendant's vehicle. Detective Huger simply saw defendant's vehicle, a light-colored Taurus, pull into the shared driveway of a triplex located at 409 Jones Franklin Road. Detective Huger then saw defendant's vehicle exit 409 Jones Franklin Road. The Chrysler Sebring also left 409 Jones Franklin Road after defendant's vehicle, though not necessarily following each other. At no time did Detective Huger see any transaction take place nor observe defendant exit his vehicle while located at 409 Jones Franklin Road. Detective Huger did not see defendant enter 409 Jones Franklin Road, apartment A, nor see defendant have any exchange or contact with the Chrysler Sebring. Upon following defendant's vehicle, officers did not observe defendant committing any illegal actions or motor vehicle infractions. Thus, "given the limited details contained in the tip, and the failure of the officers to corroborate the tip's allegations of illegal activity, the tip lacked sufficient indicia of reliability to justify the warrantless stop in this case." Harwood, 221 N.C. App. at 462, 727 S.E.2d at 900 (citation omitted).
Based on the foregoing, we hold that the trial court erred by concluding that the officers had reasonable suspicion to conduct an investigatory stop of defendant's vehicle.
IV. Conclusion
We hold that the trial court erred by concluding that there was reasonable suspicion to conduct an investigatory stop of defendant. Therefore, we reverse the trial court's denial of defendant's motion to suppress and vacate defendant's convictions for trafficking in marijuana by possession, trafficking in marijuana by transportation, and maintaining a vehicle used for keeping or selling controlled substances.
REVERSED AND VACATED.
Judges DIETZ and TYSON concur.
Report per Rule 30(e).